www.elsblog.org - Bringing Data and Methods to Our Legal Madness

05 March 2006

Blog Forum - Law Clerks as Research Subjects

This week, the ELS Blog presents its first Blog Forum, the
topic of which is law clerks as research subjects. This topic is particularly
timely. Two major studies of law clerks are scheduled for release this April, Todd
Peppers’ Courtiers of the Marble Palace: The Rise and Influence of the Supreme
Court Law Clerk (Stanford) and Artemus Ward’s and David L. Weiden’s Sorcerers’
Apprentices (NYU).

As Todd Peppers notes in his post, law clerks can be “tricky”
research subjects. Based on my experience on a survey project with Jason Czarnezki,
there are two major issues in working with former clerks. The first is
that many of them now work at law firms and are extraordinarily busy. I am not
sure that much can be done to deal with this issue. You can send multiple
requests (which we did do). You can call (which we did not do). But nothing can
make your survey billable.

The second issue is that former clerks are still bound by a
duty of confidentiality to their former employers. This duty is quite
understandable. As noted by Judge Wilkinson in his own insider’s view of the
Supreme Court, “Much of what goes on within the Supreme Court must be kept in
confidence if the spirit of frank and informal exchange there is to continue to
prevail.” J. Harvie Wilkinson, III, Serving Justice: A Supreme Court Clerk’s
View xiii (Charterhouse 1974). The expectation of confidentiality is now contained,
at least for lower court clerks, in the Code of Conduct for Judicial Employees
(1995). According to Canon 3D, clerks “should never disclose any confidential
information received in the course of official duties except as required in the
performance of such duties, nor should a judicial employee employ such
information for personal gain.” The text of this rule is not very helpful for
figuring out what is and is not confidential. The Federal Judicial Center’s
take on the rule goes a bit further, but not by much: “Although the Code does
not define confidential information, the term likely includes any information
you receive in chambers that is not filed in the public docket. Instructions
you receive from your judge, and discussions about his or her legal assessment
of a case, should also be treated as confidential.” Federal Judicial Center, Maintaining
the Public Trust: Ethics for Federal Law Clerks 6 (2002).

Perhaps the clearest category of
confidential information is non-publicly available information tied to a
specific case. Absent permission from their judges, former clerks asked about their judge’s non-public thinking about specific cases should typically
decline to answer. Otherwise, the ability of judges to have candid
discussions with their clerks would be undermined. But clerks also possess
“insider” information of a more general nature, which is not necessarily
available in an opinion or some other public comment by a judge. And they use
this information for their own benefit, either when practicing before their
former judges or when assisting others in their law firms who are practicing
before their former judges. See Christopher R. Drahozal, Book Review:
The “Arrogance of Certainty”: Trust, Confidentiality, and the Supreme Court,
47 Kan. L. Rev. 121, 125-26
(1998). As suggested in a previous post,
a former clerk might know that it is a waste of time to delve too far into the
legislative history with a particular judge because he or she generally finds
legislative history unhelpful. The former clerk can’t stop knowing this. When
information would be used by former clerks who are now practicing,
presumably it is not confidential (though this presumption might be overcome in
some situations). In my experience, however, at least some clerks
approach even very general questions about their judges with great suspicion.
Occasionally, such questions even provoke angry responses. See also Tony
Mauro, Clerks Bemoan Breach of Confidentiality, Legal Times, Sept. 27,
2004, at 11.

As will likely be evident from this
week’s exchange with Christopher Drahozal (University of Kansas), Todd Peppers
(Roanoke College), Carolyn Shapiro (Chicago-Kent Law), Artemus Ward (Northern
Illinois University), and Stephen Wasby (SUNY – Albany), law clerks possess
information that is very useful for understanding the work of the courts, but
it is not always clear when this information is subject to the duty of
confidentiality. A vague understanding of this duty likely deters some clerks
from participating in serious and worthwhile research. We hope this week’s Blog
Forum will motivate further thought into the value of this information and its proper disclosure by those who possess it.

Comments

In our particular survey project, there were no questions that could realistically damage a judge's reputation. In part, we asked the former clerks to weight the relative importance of a variety of "interpretive tools" for the judges on a scale of "1" (lowest weight) to "7" (highest weight). While it would probably be embarassing for a judge to score a lowly "1" on such a scale for the use of precedent, we did not think this was a realistic score for the two items related to precedent, one for precedent in constitutional cases and one for precedent in statutory cases.

A score this low could be realistic for other interpretive tools, such as the use of dictionaries, but it should not be embarassing to reveal that a judge finds dictionaries relatively useless. (How do you know which definition mattered to the drafters?) It just did not seem plausible to us that any judge could find precedent this useless. It might be the case, however, that the mere possibility of this type of embarassing answer made the survey seem unattractive or inappropriate to some respondents.

Another possible explanation for why law clerks jealously cling to the duty of confidentiality - loyalty to the individual justice's reputation. Former Oliver Wendell Holmes, Jr. secretary Francis Biddle once remarked that Holmes' secretaries "have perhaps done much to keep the Holmes tradition fresh and not inexact." But Holmes' secretaries also did much to burnish the justice's reputation, and professionally benefitted from basking in the "Magnificent Yankee's reflected glory. Does loyalty or personal self-interest explain why some clerks do not want to reveal their justice's clay feet? For decades, Chief Justice Fred Vinson's law clerks fought the commonly-held belief that Vinson did not draft his own opinions. Why? Wouldn't a former clerk have appeared even more important to a potential employer if he could brag about being the Chief Justice's ghostwriter?